Mashate v Kaguta

The applicant, Mr Mashate, was until 1986 the owner and editor of a newspaper which was published in Uganda under the title Weekend Digest. In 1986 the newspaper was shut down by the new government of Uganda, of which the president was, and I believe still is, the respondent, Mr Kaguta. The applicant was arrested and imprisoned on charges of treason and his assets were seized. He was later released for medical treatment and in 1989 sought asylum in this country. He is now a UK citizen.

He alleges that, in October 2007, he met Mr Kaguta at a conference in London and reached an agreement with him that the respondent would pay him the equivalent of £6.85 million, with interest from 30 May 2006 when his publishing business was destroyed. No payment was received, and on 17 November 2006 a High Court action was commenced against the respondent, seeking judgment for the contract sum plus interest.

No permission was sought for the service of the proceedings out of the jurisdiction under the provisions of Rule 6.37 of the CPR. Instead, on the day on which the claim form was issued, it was delivered by Mr Mashate to the Ugandan High Commission in Trafalgar Square and given to a Miss Drago Luba, who worked there as an administrative assistant. On 11 December 2006 judgment in default of appearance was entered against the respondent.

On 20 December a copy of the judgment was delivered to the High Commission by Mr Alex Oringa and was again received by Miss Luba. She, according to the evidence, was told by Mr Oringa that he wanted the High Commissioner to acknowledge that the documents had been delivered to the respondent. This was not done, but the package was handed by Miss Luba to the High Commissioner. Judgment in default was set aside by Master Leslie on 21 June 2007 on the ground that service had not been effected on Mr Kaguta.

There was then an appeal lodged out of time, on 7 September that year, followed by a stay of the costs order of Master Leslie which he made in favour of the respondent. On 3 October Master Eyre stayed the proceedings generally, on the basis that the pleadings were defective, and on 1 February 2008 he struck out the claim for non-compliance with his order.

On 11 July 2008 the matter came before Blair J. He considered that Mr Mashate was entitled to have his appeal against Master Leslie’s order considered on its merits. To achieve this he therefore extended the time for applying to set aside Master Eyre’s orders and set aside the order striking out the claim. This left the appeal against the order of Master Leslie.

Three points were taken in support of the appeal. First, it was said that the respondent should not have been allowed to appear by counsel instructed by the Republic of Uganda. Second, it was said that Master Leslie should have taken account of the fact that some of the documentation in the case was forged when deciding whether or not to set aside the judgment. Thirdly, it was argued that the Master had given inadequate reasons for his order.

None of these points really dealt with the key issue, which is whether the claim form had been served in November 2006 when it was left at the High Commission. Under CPR 13.2 a judgment in default must be set aside if it was wrongly entered. This includes a case where the claim form was not served in accordance with the rules. Blair J pointed out in his judgment that, where a head of state is sued in his public capacity, service is required by section 12 of the State Immunity Act to be effected through the Foreign and Commonwealth Office. If, as alleged, the action seeks relief against the respondent in his private capacity (an alternative which the judge described as “questionable”), then service has to be carried out in conformity with CPR Part 6. That required there either to be personal service on the respondent by leaving the claim form with him, which is what is provided for in CPR 6.43, or for the claim form to be left at the correct address for service specified in CPR 6.5. In the case of the respondent, this would be his usual or last known residence, which obviously was not the High Commission in London. Blair J therefore dismissed the appeal and stayed the proceedings.

Permission is now sought from this court for a second appeal under CPR Part 52.13. This requires me to be satisfied that the appeal would raise an important point of principle or that there is some other compelling reason for the court to hear it. The second ground requires one to be satisfied, at the very least, that the appeal has a reasonably good prospect of success.

In the Notice of Appeal six grounds of appeal are relied on, and they can be summarised as follows. Firstly, Blair J erred in law when he ruled that the Republic of Uganda had been correctly heard and correctly granted the order sought before Master Leslie, given that the respondent was sued in his private and personal capacity. Secondly, the judge failed to deal with the issue of service adequately. Evidence was before the court that documents had been handed to Miss Drago Luba on 17 November 2006. The respondent was on the premises, it was said, and by protocol and according to the security rules Miss Drago Luba was as far as anyone was able to go. Thirdly, the appellant needs permission to appeal in order to set aside the orders of Master Eyre. Fourthly, the judge failed to deal with the issue of the forged papers that I have referred to. Fifthly, the court administration has claimed that documentation sent by the appellant has gone missing. That is said by Mr Mashate to be puzzling. Finally, the stay of proceedings which the judge imposed, it is said, is contrary to Article 6 of the European Convention.

Rix LJ refused permission to appeal on paper because he considered that on the critical issue, which was whether there was good service of the proceedings under Part 6, Blair J was clearly right that service at the High Commission was not service at the respondent’s usual or last known residence. Mr Kaguta’s official and usual place of residence is in Kampala. The fact that he was staying at the High Commission does not make that his last known residence. He was not residing there within the meaning of the rules.

On this basis it seemed to me at the last hearing that Mr Mashate was unlikely to be able to persuade this court to give permission for a second appeal. But at the last hearing he asked for, and I granted, an adjournment, because he had apparently been let down by his counsel at the last moment and was not prepared or able to argue the matter in the time available. He also indicated that he might wish to enlarge the grounds of appeal.

He produced two additional witness statements: one from himself and one from a Miss Josephine Namatovu, in which he states and she confirms that, during the meetings between him and Mr Kaguta, it was agreed that their dispute should be governed by English law and that the High Commission would be the defendant’s address for service of any proceedings.

No details are given in the evidence as to when or how this alleged agreement was reached, whether the agreement was in writing or what its precise terms were. There is also no mention of any such agreement in the claim form and in the Particulars of Claim. They in fact do not base the claim for payment on any agreement with Mr Kaguta and state in terms that the negotiations with the defendant to recover the value of the seized assets have proved fruitless. It was on that basis that Master Eyre decided to strike the proceedings out, but it is unnecessary for me to say more about that this morning. Mr Mashate also says in his witness statement that Miss Drago Luba also informed him that she had been authorised by the defendant to accept service on behalf of himself, but that is not expressly part of her own evidence. Mr Mashate says that she was restricted in what she said in her witness statement out of fear for her own position.

The matter has been restored for hearing this morning. Mr Jafar has been instructed on behalf of Mr Mashate and very helpfully has drawn my attention to the various points which his client wishes to take in support of the application. I am grateful to him.

The new evidence, however, was not before the Master or the judge and there is, I am told, a real issue between the parties as to whether any such agreement was made. In those circumstances, I think it is far too late to admit that evidence on what is effectively an ex parte application for permission for a second appeal. The respondent has, throughout the proceedings, contested service and, under CPR 52.11, evidence which was not before the lower court should not be admitted unless the Ladd v Marshall criteria are at least satisfied and it is otherwise proportionate or appropriate to do so. Although Mr Jafar has emphasised that the focus of the proceedings in the earlier stages were on the service of the default judgment rather than the service of the claim form, Mr Mashate has not, in my judgment, produced sufficient reasons as to why this material could not have been put before the judge even if there are reasons why it was not before the Master. A failure by those advising him at the time to organise the material is not, on established principle, sufficient to outweigh the prejudice of it being introduced untested at this stage in the appeal process.

In those circumstances, there are, in my judgment, no grounds for granting permission for a second appeal which does not in any event raise an important point of legal principle. The proper course for Mr Mashate to take is either to seek to re-serve the proceedings on the solicitors currently instructed on behalf of the respondent, if they are instructed to accept service on his behalf, or alternatively to seek permission to serve the proceedings out of the jurisdiction. On such an application the Master can give whatever directions are appropriate in order to permit the proceedings to be served.

I will therefore dismiss the application.